SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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In the matter of the application of CONSTANCE VERIFIED PETITION

MALCOLM, FRANCLOT GRAHAM, AND COMPLAINT
COMMUNITIES UNITED FOR POLICE REFORM,
and THE JUSTICE COMMITTEE, Index Number:

Petitioners-Plaintiffs, RJI No.:

For Judgment and Order Pursuant to Article 78 and 3001

of the Civil Practice Law and Rules

- against -

The NEW YORK CITY POLICE DEPARTMENT, and

JAMES P. ONEILL, NYPD COMMISSIONER,
in his official capacity,

Respondents-Defendants.

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Petitioners-Plaintiffs1 CONSTANCE MALCOLM, FRANCLOT GRAHAM,

COMMUNITIES UNITED FOR POLICE REFORM, and THE JUSTICE

COMMITTEE, by their duly authorized attorney, GIDEON ORION OLIVER, 277

Broadway, Suite 1501, NY, NY 10007, hereby make the following Verified Petition and

Complaint against Respondents the NEW YORK CITY POLICE DEPARTMENT

(NYPD) and JAMES P. ONEILL, NYPD COMMISSIONER, in his official capacity:

PRELIMINARY STATEMENT

1. This lawsuit, filed on what would have been Ramarley Grahams 24th

birthday, seeks access to records related to Mr. Grahams death over five years ago at the

1
Throughout this Verified Petition and Complaint (Petition), Petitioners-Plaintiffs are referred to as
Petitioners and Respondents-Defendants are referred to as Respondents.
hands of then-NYPD Officer Richard Haste, the ensuing public NYPD smear campaign

against Mr. Graham, and other, related topics.

2. Shortly after 3:00 p.m. on the afternoon of February 2, 2012, Richard

Haste, who was then a NYPD officer, and other NYPD officers, forced their way into the

private, second-floor apartment within the private residence at 749 East 229th Street in

Bronx County, New York, where Mr. Graham, who was 18 years old, lived with his 6-

year-old brother, their mother, Petitioner Constance Malcolm, and her mother, Patricia

Hartley. Moments later, Haste shot and killed Mr. Graham. Mr. Graham was unarmed.

When Haste shot and killed Mr. Graham, Mr. Grahams grandmother, Ms. Hartley, was

standing next to him, and his 6-year-old brother was mere feet away.

3. On September 29, 2016, Petitioners made a request to the NYPD pursuant

to the New York State Freedom of Information Law (FOIL), Article 6, Sections 84-90

of the Public Officers Law, and its implementing regulations, Chapter 21 of the New

York Code of Rules and Regulations (NYCRR) Part 1401 (the Implementing

Regulations), as well as the Uniform Rules and Regulations for All City Agencies

Pertaining to the Administration of the Freedom of Information Law, Title 43, Rules of

the City of New York (RCNY), Chapter 1 (the Uniform FOIL Rules). A true copy of

the September 26, 2016 Request is attached as Exhibit 1.

4. As described more fully below, the Request sought records regarding

Hastes

shooting and killing of Ramarley Graham on February 2, 2012; the

underlying circumstances; misconduct related to the shooting,
investigations into the shooting, and statements made to or by the NYPD
to the media and/or prosecutors; investigations, disciplinary actions, and
prosecutions undertaken or contemplated regarding the shooting and
related events (such as leaking confidential information to the media
related to Mr. Graham and the shooting); the outcomes of any such

2
 investigations, disciplinary actions, or prosecutions; relevant NYPD
procedures and practices; communications between the NYPD and City
Hall and other agencies about Mr. Grahams shooting or related
investigations, disciplinary actions, and prosecutions; and the other
records described [in the Request].

See Request at p. 1.

5. Petitioners bring this combined Article 78 and declaratory judgment

proceeding in light of Respondents insufficient responses to the Request, described more

particularly below, seeking relief, inter alia, pursuant to New York State Civil Practice

Law and Rules (CPLR) Article 78 and CPLR 3001 to challenge Respondents

various violations of the FOIL, the FOIL Implementing Regulations, and the Uniform

FOIL Rules related to the Request, the Denial, the Appeal, and the Final Determination.

6. Petitioners also seek relief in the nature of mandamus pursuant to CPLR

7803(1) in the form of an Order requiring Respondents to accept and respond to FOIL

requests and appeals by e-mail and to produce documents in electronic format in

compliance with 89(3)(b) 2 and 87(5)(a)3 of the FOIL.

7. Petitioners further seek a declaratory judgment pursuant to CPLR 3001

declaring that Respondents refusals to accept and respond to FOIL requests and appeals

2
Under 89(3)(b) of the FOIL,

All entities shall, provided such entity has reasonable means available, accept requests for
records submitted in the form of electronic mail and shall respond to such requests by
electronic mail, using forms, to the extent practicable, consistent with the form or forms
developed by the committee on open government pursuant to subdivision one of this
section and provided that the written requests do not seek a response in some other form.

See FOIL 89(3)(b).

3
Under FOIL 87(5)(a), An agency shall provide records on the medium requested by a person, if the
agency can reasonably make such copy or have such copy made by engaging an outside professional
service.

3
by e-mail and by producing documents in electronic format when requested, violated and

violate those provisions of the FOIL.

8. Petitioners also seek reasonable attorneys fees and costs incurred as a

result of Respondents violations of the FOIL.

9. By letter dated October 6, 2016, sent by regular postal mail, a true copy of

which is attached as Exhibit 2 (the 10/6/16 Response), the NYPD acknowledged

receipt of the Request and stated: Before a determination can be rendered, further review

is necessary to assess the potential applicability of exemptions set forth in FOIL, and

whether records can be located. The 10/6/16 Letter estimated that the review will be

completed, and a determination issued, within ninety business days of October 6, 2016.

10. In a letter dated January 31, 2017, a copy of which is attached as Exhibit 3

(the Denial), the RAO denied access to the records described in the Request in full,

citing 87(2)(e)(i) of the FOIL as such records/information, if disclosed would interfere

with a law enforcement investigations or judicial proceedings.4

11. In an appeal letter dated March 1, 2017, a true copy of which is attached

as Exhibit 4 (the Appeal), Petitioners appealed the Denial on four separate grounds.

12. In a letter dated March 16, 2017, a true copy of which is attached as

Exhibit 5 (the Final Determination), the NYPD denied the Appeal in part and granted

the Appeal in part.

4
FOIL 87(2)(e)(i) provides that an agency may deny access to records or portions thereof that:(e) are
compiled for law enforcement purposes and which, if disclosed, would: i. interfere with law enforcement
investigations or judicial proceedings.

4
 13. The NYPD granted the Appeal in part only to the extent that Respondents

disclosed 54 pages of heavily redacted documents, copies5 of which are attached

collectively as Exhibit 6, along with the Final Determination.

14. As discussed below, the few records disclosed along with the Final

Determination consist primarily of printouts of summaries of some outward-facing

aspects of the NYPDs investigation into Mr. Grahams shooting (which police initially

characterized as a homicide) such as mostly-redacted accounts of canvasses of

locations near the shooting for potential witnesses or video - between February 2, 2012

and February 9, 2012, when the investigation into Hastes shooting Mr. Graham was

referred to the NYPDs Internal Affairs Bureau (IAB).

PARTIES

15. Petitioners CONSTANCE MALCOLM and FRANCLOT GRAHAM are

Ramarley Grahams parents. Petitioner Malcolm is also the Administratrix of the Estate

of Ramarley Graham.

16. Mr. Grahams parents have been tirelessly leading and pursuing

campaigns for justice for Mr. Graham and related police accountability for five years

through public education, direct action, and other organizing and campaigns and public

policy advocacy targeting New York City Mayor Bill de Blasio and the NYPD.

17. Mr. Grahams parents demand answers from the NYPD as to the topics

covered in the Request related to the NYPD killing of their son. They have strong

interests in obtaining the records and information sought in the Request because they are

5
Exhibit 6 includes true copies of the documents provided by Respondents with the Final Determination
except that counsel has added Bates Numbers to the bottom of each page for convenience and, as
mentioned below, the fewer than sixty seconds of video produced by Respondents is not included as part of
Exhibit 6.

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Mr. Grahams parents and they deserve all of the available answers about their sons

death as all of the tools available, including the records and information sought in the

Request, to pursue and advance their public policy campaigns for justice related to Mr.

Grahams killing and police hands and for meaningful, related accountability.

18. Petitioners COMMUNITIES UNITED FOR POLICE REFORM (CPR)

is a a self-described unprecedented campaign that is working to end discriminatory

policing in New York. . advancing policies that protect the safety and rights of all New

Yorkers to create true community safety. fighting to hold police accountable for

violating New Yorkers' constitutional rights. training communities to know their

rights and to observe and document police abuse. engag[ing] in strategic direct action,

organizing and civic engagement to build the power of communities most impacted by

abusive policing.[a]nd in Albany and at City Hall demanding law and policy

changes that advance police accountability to improve safety for communities. See

http://changethenypd.org/. A list of CPR member organizations can be found here:

http://changethenypd.org/campaign/intro-members.

19. Petitioners THE JUSTICE COMMITTEE (The JC) is among the

Communities United for Police Reform member organizations. See

http://www.justicecommittee.org/. The JC is a grassroots organization dedicated to

building a movement against police violence and systemic racism in New York City. The

JCs membership is multi-racial, but majority Latino/a, and includes families who have

lost loved ones to the police, as well as other members of impacted communities.

20. Petitioners CPR and The JC have supported Mr. Grahams parents and

their political organizing and public policy campaigns for justice and accountability

related to Mr. Grahams killing for several years.

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 21. Petitioners CPR and The JC frequently rely on the FOIL and related laws

and regulations to gather information about policing in New York City and related

policies, as well as public education, public policy campaigns, and other political

advocacy around issues including police reform and accountability, including police

accountability for Mr. Grahams death. They have strong interests in obtaining the

records and information sought in the Request in order to support Mr. Grahams parents

and because they need the records and information sought in the Request to pursue and

advance their political pressure campaigns for justice for Mr. Graham and for

meaningful, related police accountability.

22. Respondent the NEW YORK CITY POLICE DEPARTMENT (the

NYPD or the Department) is a law enforcement agency administered under Title 14

of the New York City Administrative Code.

23. The NYPD is a public agency subject to the FOIL, the FOIL

Implementing Regulations at 21 NYCRR Part 1401, and the Uniform FOIL Rules at 43

RCNY Chapter 1.

24. Respondent JAMES P. ONEILL is a public officer who is named in his

official capacity as NYPD Commissioner.

25. Respondent ONEILL is responsible for establishing the NYPDs final

policy in the area of complying with the FOIL, including its requirements that the NYPD

accept and respond to FOIL requests and appeals by e-mail and that it provide electronic

versions of responsive documents when requested.

26. Respondents general offices are located at One Police Plaza, New York,

New York 10038 in the County and State of New York.

VENUE

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 27. The acts and admissions complained of herein took place in New York

County.

28. Respondents offices are in New York County.

29. Therefore, venue is proper in New York County pursuant to CPLR

506(b) and 7804(b).

FACTS

BACKGROUND PRIOR TO THE REQUEST

30. On February 2, 2012, Haste, NYPD Sgt. Scott Morris, as well as NYPD

Officer John McLoughlin and other NYPD officers were part of a NYPD Special

Narcotics Enforcement Unit (SNEU) team deployed in the area of a bodega located at

East 228th Street and White Plains Road. See Request at p. 2.

31. At around 3:00 p.m., Mr. Graham entered the private, gated, residential

house at 749 East 229th Street. That house includes the second-floor apartment at which

he was staying with, his mother, Petitioner Malcolm, his 6-year-old brother, and their

grandmother, Patricia Hartley. See Request at p. 2.

32. The front door of the private, residential house locked behind Mr. Graham

as he entered. Mr. Graham walked up the stairs and entered the apartment. The front door

to the apartment locked behind him. His grandmother and younger brother, were inside

the apartment. See Request at p. 2.

33. Shortly after Mr. Graham entered the house, multiple NYPD officers,

including Haste and Morris, ran up to the front door of the private residence, with guns

drawn, and tried to force their way in. When they could not force their way into the front

door, NYPD officers surrounded the house. Eventually, several of them entered, guns

8
drawn, through the back door of the first floor tenants apartment. They let other officers

in through the front door. See Request at p. 2.

34. Four or more minutes passed after Mr. Graham entered the apartment.

Without warning, Haste, McLoughlin, and other police forced their way into the

apartment. They did not identify themselves, announce their purpose, or issue any

warnings. Haste entered with his gun drawn. See Request at p. 3.

35. Then, just after 3:00 p.m. on February 2, 2012, Haste shot Mr. Graham in

the chest, killing him as he stood steps away from his grandmother and younger brother.

See Request at p. 3.

36. Mr. Graham was unarmed when Haste shot and killed him. See Request at

p. 3.

37. After Haste killed Mr. Graham, police took Ms. Hartley to the 47th

Precinct stationhouse. See Request at p. 3.

38. When Petitioner Malcolm arrived home from work, police refused to give

her information about what had happened at her house, and insisted on bringing her to the

47th Precinct, as well. See Request at p. 3.

39. At the 47th Precinct, Petitioner Malcolm overheard police talking about

the homicide and then learned from Ms. Hartley that police had shot and killed Mr.

Graham. See Request at p. 3.

40. Police separated Petitioner Malcolm and her mother at the 47th Precinct,

denying Ms. Hartley access to awaiting counsel while police repeatedly interrogated her.

41. Ms. Hartley remained in NYPD custody against her will at the 47th

Precinct stationhouse for over seven hours, until around 10:00pm. While she was there,

officers ignored her requests to leave and to see her daughter, denied her access to her

9
attorney, and bullied and aggressively interrogated her, calling her a fucking liar

among other things. They lied to Ms. Hartley and said that Mr. Graham had thrown a gun

out the window, and accused her of saying untrue things and of covering up for him. See

Request at p. 4.

42. Police prevented Ms. Hartley, Petitioner Malcolm, and her 6-year-old son

from returning to their apartment for over two days as NYPD officers searched Ms.

Hartleys apartment and the area around the building for two days. They recovered no

gun. See Request at p. 4.

43. According to NYPD accounts given to the media in February of 2012,

including such accounts given by then-NYPD Commissioner Raymond Kelly and then-

NYPD Deputy Commissioner for Public Information Paul Browne, police claimed that

the SNEU team had the bodega under observation because police had received reports of

drug sales out front and because police suspected drugs were sold at the bodega. See

Request at pp. 4-6.

44. Also according to NYPD accounts given to the media in February of 2012,

including such accounts given by then-NYPD Commissioner Raymond Kelly and then-

NYPD Deputy Commissioner for Public Information Paul Browne, the NYPD made

various specific representations about the events leading up to Mr. Grahams death,

including, but not limited to, the following:

a. After police initially observed Mr. Graham in the vicinity of the

bodega, police reported over NYPD radio that Mr. Graham had or may
have had a gun.

b. Police detained and/or arrested two people they perceived to be

associated with Mr. Graham after they left the bodega with Mr.
Graham.

10
 c. Police gave orders or directions to Mr. Graham on the street (such as
to stop or not to move).

d. Mr. Graham ran or fled from police.

e. Police then chased or pursued Mr. Graham on the street.

f. Mr. Graham struggled or tussled with Haste inside Mr. Grahams

apartment before Haste shot him.

See Request at pp. 4-9.

45. Mr. Grahams family denied or contested many of the statements that

police made to the media about the circumstances leading up to Mr. Grahams death in

February of 2012, including such statements that Mr. Graham was given and disregarded

police orders, that he fled from police, or that he struggled or tussled with Haste.

46. They were, and remain, concerned to discover the sources of those

statements as well as answers to questions such as: Why did police publicly spread lies

and misinformation about Mr. Graham?

47. On February 3, 2012, The New York Times reported that, according to

then-NYPD Commissioner Kelly, the officer who had shot Mr. Graham and his Sergeant,

whom police refused at the time to name, had been stripped of their guns and badges and

placed on modified duty. See Request at p. 4.

48. Also on February 3, 2012, The Wall Street Journal reported on aspects of

what it characterized as Mr. Grahams history of contacts with law enforcement based on

information provided by the NYPD, including information about case that were

dismissed and/or sealed, the disclosure of which should have been prohibited by New

York State Criminal Procedure Law (CPL) Sections 160.50 and 160.55 or other

provisions of the law. See Request at p. 6.

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 49. Mr. Grahams family complained to then-NYPD Commissioner Kelly

about the illegal accessing and distribution to the media of sealed information related to

Mr. Grahams purported law enforcement contacts in 2012. See Request at p. 6.

50. On February 4, 2012, then-NYC Public Advocate Bill de Blasio said:

Part of the healing process for the Graham family, and for the city as a whole, derives

from a fair, speedy, and transparent investigation. That work should begin immediately.

See Request at p. 6.

51. On February 9, 2012, then-NYPD Commissioner Kelly ordered an

internal review of how officers conduct low-level narcotics operations. See Request at p.

7.

52. By the end of February, the review had been completed and had found,

among other things, that some narcotics team officers were working in plain clothes, in

violation of a directive that they wear jackets identifying them as police. See Request at

p. 7.

53. By May of 2012, the Bronx County District Attorney had convened a

grand jury that was hearing testimony in a potential case against Haste, and at some time

before June 11, 2012, the grand jury indicted Haste on manslaughter charges. See

Request at p. 8.

54. Also by around May of 2012, upon information and belief, Mr. Grahams

family caused a Notice of Claim to be filed with the Comptroller of the City of New York

related to Mr. Grahams death.

55. On February 1, 2013, Mr. Grahams estate, his parents, Ms. Hartley, and

his brother brought suit against the City of New York, Haste, Morris, and others, seeking

damages related to Mr. Grahams death. See Request at p. 9.

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 56. In court papers filed in May of 2013, lawyers for the City represented to

the United States District Court for the Southern District of New York that there was a

pending IAB investigation against Haste which would not be resolved until completion

of the criminal prosecution in the Bronx. See Request at p. 9.

57. On May 5, 2013, Acting Justice Steven Barrett dismissed the indictment in

that Bronx manslaughter case against Haste on the grounds that the prosecution had

improperly instructed the grand jury. See Request at p. 9.

58. In around August of 2013, the Bronx DA presented evidence to a second

grand jury, and on August 8, 2013, that grand jury declined to indict Haste. See Request

at p. 9.

59. By late afternoon on August 8, 2013, Preet Bharara, then-United States

Attorney for the Southern District of New York, promised a United States Department of

Justice (DOJ) investigation. See Request at p. 9.

60. After hearing nothing for over a year, following a political pressure

campaign, in September of 2014, US Attorney Bharara met with Mr. Grahams family

and told them that the Department of Justices investigation was ongoing. See Request at

p. 10.

61. In January of 2015, the City and NYPD officer defendants settled the civil

suit that Mr. Grahams family had filed in 2013 for a total of $3.9 million. See Request at

p. 10.

62. In January of 2016, then-NYPD Commissioner William Bratton told New

York City Council Members at a Black, Latino, and Asian Caucus meeting that the DOJ

had directly asked the police department to withhold the Internal Affairs findings,

13
delaying any departmental trial or discipline for Haste. The DOJ denied making any

such request, and Bratton later called it a miscommunication. See Request at p. 10, 12.

63. After Mayor Bill de Blasios 2013 election, Petitioners pressured him to

pursue justice for Mr. Graham.

64. Petitioners have continued that political pressure campaign targeting

Mayor de Blasio throughout this term of office although the Mayor refuses to

communicate directly with, or meet with, Mr. Grahams family.

65. For example, on February 2, 2016 the four-year anniversary of Mr.

Grahams death Mr. Grahams parents attempted to deliver a letter to Mayor de Blasio

calling on him and then-NYPD Commissioner William Bratton to fire Haste and other

officers involved. See Request at p. 10.

66. On March 8, 2016, Mr. Grahams parents met with U.S. Attorney Bharara

a second time, and he informed them that the DOJ had concluded its investigation and

would not be bringing a federal civil rights prosecution. See Request at p. 10.

67. Also on March 8, 2016, The New York Times reported that Haste was still

on modified assignment, or desk duty. See Request at p. 11.

68. On March 10, 2016, The New York Times confirmed that the NYPDs

internal administrative trial against Haste would proceed, noting that the NYPD had

internal disciplinary charges in June 2012 against Officer Haste, as well as against a

sergeant from the unit and another officer. See Request at p. 11.

69. There are no state or federal criminal charges or civil cases pending

against Haste or any of other officers involved in Mr. Grahams shooting or any

investigation related to it, nor can any such charges or cases be brought in the future. See

Request at p. 12.

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 70. On September 22, 2016, The Wall Street Journal reported that the NYPD

was preparing to hold a disciplinary trial for Haste. See Request at p. 12.

THE 9/26/16 REQUEST (EXH. 1) AND 10/6/16 RESPONSE (EXH. 2)

71. The Request is comprised of a BACKGROUND section (at pp. 2-12)

largely summarized above followed by 45 separate FOIL REQUESTS for various records

relating to the events leading up to and following Mr. Grahams death (at pp. 12-23).

72. On September 29, 2016, the NYPD received the Request by hand as well

as by e-mail to the e-mail address of the NYPDs Records Access Officer (RAO).

73. The Request sought a response by e-mail as well as electronic versions of

responsive records and the e-mail address and other contact information of the Records

Access Appeals Officer (RAAO). See Request at pp. 2, 23.

74. The Request reasonably describes the records sought, wherever possible

referring to documents required to be created by the NYPDs Patrol Guide by reference

to the relevant NYPD Patrol Guide provisions and NYPD designations.6

75. The Request speaks for itself and Petitioners challenge Respondents

denial of the Request in its entirety. Some of the categories of documents sought in the

6
In this connection, the Final Determination claims, in summary fashion, that certain undescribed
records could not be located based on the information provided. If Respondents believed that the Request
did not provide adequate information which would be surprising given the length and detail in the
Request they were obliged to take steps to communicate that to Petitioners. For example, 21 NYCRR
1401.2 (b)(2) required Respondents to [a]ssist persons seeking records to identify the records sought, if
necessary, and when appropriate, to indicate the manner in which the records are filed, retrieved or
generated to assist persons in reasonably describing the records. Similarly, under 43 RCNY 1-03(b),
[e]ach agencys records access officer shall assist members of the public in identifying the requested
records. Additionally, 43 RCNY 1-05(c)(3) requires that

[i]f a request does not adequately describe the records sought, the records access officer
shall notify the requesting party in writing this his request has been denied, stating the
reasons why the request does not meet the requirements of this section and extending to
the requesting party an opportunity to confer with the records access office in order to
attempt to reformulate the request in a manner that will enable the agency to identify the
records sought.

In this case, Respondents did none of those things.

15
Request are summarized or discussed briefly below to illustrate some points related to

Petitioners causes of action and supporting facts and arguments.

76. The Request seeks records reflecting any tips or reports related to actual

or suspected drug sales at the bodega at East 228th Street and White Plains Road between

March 1, 2011 and March 1, 2012. See Request at p. 13, Paragraphs 1, 5(a).

77. The Request seeks the 47th Precinct Roll Calls for all tours on February 2-

3, 2012. See Request at p. 13, Paragraph 3.

78. The Request seeks other NYPD records sufficient to identify other NYPD

47th Precinct SNEU officers who were on duty on February 2, 2012 and/or involved in

observing Mr. Graham and/or entering Mr. Grahams apartment prior to or after Haste

shot Mr. Graham, as well as other NYPD officers who entered or searched Mr. Grahams

apartment, and/or who interacted with Mr. Grahams family on February 2, 2012. See,

e.g., Request at p. 20, Paragraph 36.

79. The Request seeks the Command Logs from the 47th Precinct from

February 2-3, 2012. See Request at p. 13, Paragraph 4.

80. The Request seeks tactical or other plans for the 47th Precinct SNEU

team on February 2, 2012. See Request at p. 13, Paragraph 2.

81. The Request seeks recordings of and other records reflecting the contents

of NYPD radio communications from February 2-3, 2012 regarding the circumstances

leading up to and including Mr. Grahams death, requests for medical assistance,

investigations into Mr. Grahams death, and related events, on February 2-3, 2012. See

Request at pp. 13-14, Paragraphs 6-7.

82. The Request seeks the Firearms Discharge Report related to Hastes

shooting, and ballistics other reports or records relating to Hastes discharge of his

16
firearm on February 2, 2012, as well as related records including records related to

firearms or ballistics documentation and evidence and chain of custody documentation.

See Request at p. 16, Paragraphs 18-19.

83. The Request seeks other records documenting observations, statements,

or other facts about the circumstances leading up to Mr. Grahams death, including his

injuries and medical care provided to Mr. Graham, as well as Crime Scene Unit and other

evidence, steps taken to ensure the integrity of the scene and chain of custody

documentation. See Request at pp. 13-15, Paragraphs 5(b) and (c), 9-15, 17, 20-22.

84. The Request seeks the Activity Log, Memo Book, Daily Activity Report,

and other, similar NYPD records covering February 2-3, 2012 created by Haste, Morris,

and other NYPD officers who observed Mr. Graham on February 2, 2012 before his

death or responded to the scene within two hours of the shooting, as well as from NYPD

officers who interacted with Mr. Grahams family on February 2-3, 2012. See Request at

p. 14, Paragraph 8.

85. The Request seeks photographs and video related to the circumstances

leading up to and including Mr. Grahams shooting and investigations into it and related

evidence, including Crime Scene Unit photographs and videos. See Request at pp. 15-18,

Paragraphs 13-14, 21-22, 26.

86. The Request seeks records reflecting the treatment of Mr. Grahams body

by NYPD officers and emergency medical respondents and documents reflecting who

interacted with Mr. Grahams body within an hour of his death and in what manner. See

Request at p. 15, Paragraph 15.

87. The Request seeks records from the Office of the Chief Medical Examiner

for the City of New York or the Fire Department of the City of New York related to Mr.

17
Grahams shooting, injuries, medical treatment, body, or autopsy. See Request at p. 17,

Paragraph 25.

88. The Request seeks records reflecting the steps NYPD officers took to

inform Mr. Grahams family of Mr. Grahams death. See Request at p. 15, Paragraph 16.

89. The Request seeks other records regarding the NYPDs treatment of Mr.

Grahams family on February 2, 2012, including the uses of force against them in the 47th

Precinct stationhouse within hours after an NYPD officer from the 47th Precinct shot and

killed Mr. Graham. See, e.g., Request at pp. 14, 17 Paragraphs 10, 23.

90. The Request seeks communications with the press by the NYPD, and

statements to the press by the NYPD, regarding Mr. Graham, his shooting, and any

related events, including, but not limited to, any related investigations, disciplinary

actions, or prosecutions. See Request at p. 18, Paragraph 27.

91. The Request seeks notes and other records relied on or containing

information relied on by NYPD personnel in February of 2012 in making specific

statements to the press in February of 2012, including false statements initially made by

then-NYPD Commissioner Kelly and then-NYPD DCPI Browne that Mr. Graham ran

into his home and struggled with Haste inside his apartment. See Request at p. 19,

Paragraphs 28-29.

92. The Request seeks records reflecting the means by which NYPD officers

may electronically access criminal history information sealed pursuant to the New York

Criminal Procedure Law as well as records reflecting any NYPD searches of Mr.

Grahams sealed criminal history information between February 2-5, 2012, including

records identifying the dates of such searches and the identities of NYPD officers who

made any such searches. See Request at p. 19, Paragraphs 30-31.

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 93. The Request seeks records relating to investigations, disciplinary actions,

or prosecutions related to Mr. Grahams shooting or related misconduct. See Request at

pp. 13, 16-17, 19-20, Paragraph 5(d), 20-21, 24, 32-35.

94. The Request seeks records regarding any NYPD investigations into the

illegal release of Mr. Grahams criminal history information to The Wall Street Journal

that led to the publication of Mr. Grahams private, sealed criminal history information.

See Request at p. 19, Paragraph 32.

95. The Request seeks the February 2012 review of SNEU operations

discussed by then-NYPD Commissioner Kelly and then-NYPD DCPI Browne in

February of 2012. See Request at p. 23, Paragraph 45.

96. The Request seeks documents reflecting NYPD policies in 2012, including

NYPD Patrol Guide Provisions, Interim Orders, Administrative orders, and other, similar

documents reflecting NYPD policy and training from 2012 on enumerated topics

including, but not limited to, warrantless entries to homes and/or apartments, use of force,

deadly force, and firearms, treatment of a crime scene and evidence in police shooting

cases, testing of firearms, blood splatter, and other evidence in such cases, the

circumstances under which NYPD officers can access sealed criminal history

information, the circumstances under which NYPD officers are authorized to release such

sealed criminal history information to the media, NYPD SNEU policies and practices,

and the administration of NYPD disciplinary matters. See Request at pp. 21-23,

Paragraphs 39-40, 44.

97. The Request seeks records related to any Civilian Complaint Review

Board (CCRB) complaints related to Mr. Grahams shooting or related events, as well

as records related to CCRB complaints against Haste, Morris, or any other members of

19
the 47th Precincts SNEU Unit between 2005 and 2013. See Request at p. 21, Paragraphs

37-38.

98. The Request seeks records related to any non-NYPD investigations or

prosecutions arising from Mr. Grahams shooting or any related events by the DOJ,

Bronx County DA, or any other entity, including, but not limited to, records disclosed by

the NYPD to any such entity. See Request at p. 23, Paragraph 41.

99. The Request seeks records reflecting the contents of statements made to

the Bronx grand juries in People v. Richard Haste. See Request at p. 23, Paragraph 42.

100. The Request seeks records reflecting communications between the NYPD

and the Office of the Mayor and the New York City Council between 2012 and

September of 2016 regarding investigations, disciplinary actions, or prosecutions related

to Mr. Grahams shooting. See Request at p. 23, Paragraph 43.

ADDITIONAL RELEVANT POST-REQUEST EVENTS

101. At a December 14, 2016 appearance related to Hastes administrative trial,

the presiding NYPD officer denied Hastes lawyers bid to join his trial with potential

disciplinary trials of Sgt. Morris or Officer McLoughlin, and scheduled Hastes trial to

begin on January 17, 2012. See Appeal at p. 2.

102. Hastes disciplinary trial began on January 1, 2017 and ended on January

23, 2017. See Appeal at p. 3.

103. According to the New York City Administrative Code (NYCAC), see,

e.g., NYCAC 14-115(b), the Rules of the City of New York (RCNY), see, e.g., 38

RCNY 15-03; 15-04(g), and the NYPD Patrol Guide and related policies and practices,

such disciplinary trials must be open to the public (absent certain extraordinary

circumstances not present here).

20
 104. Consistent with those requirements, Hastes disciplinary trial was widely

attended by the public and the press, and members of the press and others published

accounts regarding the witnesses who testified and the contents of their testimony that

were and are publicly available. See Appeal at p. 3, Appendix A thereto.

105. At the proceeding, numerous records sought in the Request were

introduced as exhibits and Haste and other NYPD officers testified revealing the contents

of records sought in the Request. For example, upon information and belief7, dozens of

exhibits were introduced into evidence at Hastes administrative disciplinary trial

including, but not limited to, charges and specifications, police and civilian witness

statements/interview transcripts, video, photographs of the crime scene and of other

evidence, maps, floor plans, ballistics lab report, the Firearms Discharge Review Board

Report, Firearms Discharge Review Board voting sheet, provisions of the NYPD Patrol

Guide, sections NYPD Recruit Training Manual, NYPD training documents such as

Lesson Plans, an April 2014 presentation apparently relating to SNEU tactics, and tens of

other records. Additionally, numerous witnesses testified as to the contents of most or all

of those exhibits and other, similar records, including, but not limited to, the contents of

police communications over various police frequencies and transcripts of interviews and

witness statements apparently numbering in the hundreds of pages.

106. After Hastes administrative disciplinary trial ended, Respondents

promised to make the outcome public. See Appeal at p. 3.

GROUNDS FOR THE 3/1/17 APPEAL (EXH. 4)

107. The Appeal challenged the Denial on the following grounds:

7
The basis of the information and belief includes the summaries of each appearance are available publicly
online here - http://www.riseup4ramarley.org/news/?category=court+summary - as well as the observations
of people who attended Hastes hearing.

21
 a. The RAO did not conduct the required diligent search for
responsive records (Appeal at pp. 4-5).

b. The RAO constructively denied the request (Appeal at pp. 4-5).

c. The Denial was an improper blanket denial that failed to

describe the records withheld or to provide any basis for
withholding them (Appeal at pp. 5-6).

d. The Denial improperly invoked the exemption in FOIL

87(2)(e)(i) to justify withholding some undescribed records
without providing the required particularized justifications
(Appeal at pp. 6-8).

e. The NYPDs refusals to accept and respond to the Request and

Appeal by e-mail and respond to the Request by electronic
means violated FOIL 89(3)(b) and 87(5)(a) (Appeal at pp.
8-9).

THE 3/16/17 FINAL DETERMINATION (EXH. 5)

AND PARTIAL PRODUCTION (EXH. 6)

108. Except to the limited extent described below, the Final Determination

denied the Appeal on the grounds described in the Final Determination and summarized

below.

109. The Final Determination granted the Appeal only to the extent that it

disclosed the heavily redacted records included as Exh. 6 hereto.8

110. In the Final Determination, Respondents describe the partial grant of the

Appeal as follows:

Your appeal has been granted-in-part to the extent that a diligent search
has been conducted for records requested for the incident involving Mr.
Ramarley Graham on February 2, 2012 and enclosed herein are all
available non-exempt records. Included in those records are: Complaint
Report #2012-047-964; Complaint Report Follow-Ups containing non-
exempt information, (i.e., Canvass for witnesses/video, Unusual
Occurrence Report, Interview with EMS, Interviews with Patricia Hartley,

8
The approximately under sixty seconds of video footage disclosed by the NYPD is not included as part of
Exh. 6. The footage is summarized in Bates No. 000038.

22
 General Investigation, Video Surveillance and Closing). Please note that
redactions have been made to these records

In addition, enclosed herein is a DVD containing surveillance video

collected by responding investigators and memorialized in Complaint
Report Follow-Up No. 49.

The records also include two (2) non-exempt Property Clerk Invoices
generated following the incident; as well as a list of all police-related
incidents having occurred at the bodega at East 228th Street and White
Plains Road between March 1, 2011 and March 1, 2012; and, finally, the
Call Out Report generated by Internal Affairs documenting their initial
response to, and investigation of, the scene (#12-0309). The list of
incidents at the bodega and the Call Our Report both contain
redactions.

111. Petitioners group the 54 total pages of heavily redacted documents and

approximately under sixty total seconds of video disclosed by Respondents along with

the Final Determination roughly as follows:

a. Complaint Report #2012-047-964 (Bates Nos. 000001-

000002).

b. 32 Complaint Report Follow-Ups (Bates Nos. 000003-000042)

(19 of which are heavily redacted, as discussed below).

i. 1 Unusual Occurrence Report (Bates Nos. 000004-

000005).

ii. 19 CANVASS Complaint Report Follow-Ups (Bates

Nos. 000003, 000007-000011, 000017-000024,
000026-000027, 000029, 000033, and 000035) (heavily
redacted, as discussed below).

iii. 1 VIDEO SURVEILLANCE COLLECTION

Complaint Report Follow-Up (Bates No. 000038).

iv. 3 INTERVIEW Complaint Report Follow-Ups (Bates

Nos. 000006, 000013-000014, and 000031-000032).

v. 7 GENERAL INVESTIGATION Complaint Report

Follow-Ups (Bates Nos. 000012, 000015, 000025
(redacted, as discussed below), 000030, 000036,
000037, and 00041-000042).

23
 vi. 1 B5 CLOSING REPORT Complaint Report Follow-
Up (Bates Nos. 000039-000040).

c. Property Clerk Invoice Decedents Property (Jewelry).

d. Property Clerk Invoice DNA Investigatory (Blood Swabs)

(Bates Nos. 000045-000046).

e. Location Search (Bates Nos. 000047-000048) (redacted, as

discussed below).

f. Internal Affairs Bureau Call Out Report records (Bates Nos.

000050-000054) (redacted, as discussed below).

112. NYPD Complaint Report #2012-047-964 disclosed by Respondents as

part of the Final Determination, entered at 6:00PM on February 2, 2012, memorialized a

complaint regarding POLICE ACTION REL. HOMICIDE that, at 3:01PM, Mr.

Graham - the VICTIM - died due to an apparent gunshot wound as a result of police

action and that Mr. Graham had been pronounced dead at 3:53PM. (Bates Nos. 000001-

000002).

113. One of the three total INTERVIEW Complaint Follow-Up Reports

disclosed by Respondents as part of the Final Determination documents that NYPD

Detectives were on the scene of the shooting before EMS arrived and that at 3:40PM they

watched EMS remove Mr. Graham from the 2nd floor. (Bates No. 000006).

114. According to 18 heavily redacted9 CANVASS and a GENERAL

INVESTIGATION Complaint Report Follow-Ups dated February 2, 2012 disclosed by

Respondents as part of the Final Determination, between 3:55pm and around 9:00pm on

February 2, 2012, NYPD Detectives from the 43rd, 46th, and 47th Precinct Detective

9
It is not always clear where Respondents have redacted these records, in part because Respondents have
redacted portions of the records using apparently borderless white redaction markers that blend in with the
white background of the original records rather than black or other redaction markers showing what has
been redacted, if not why.

24
Squads, as well as the Bronx Homicide Task Force, canvassed various locations near for

witnesses and videos. (Bates Nos. 000003, 00008-000010, 000011, 000016-000018,

000020-000023, 000025-000029, 000033-000034).

115. The Final Determination purports to justify the redactions in the

Complaint Report Follow-Ups (Bates Nos. 000003-000042) citing the following:

a. POL 87(2)(b) because disclosure of certain information

would constitute an unwarranted invasion of personal privacy
under 89(2)10

b. 87(2)(f), because the disclosure of certain information

particularly, witness personal information and/or statements
could endanger the life or safety of those individuals11

c. 87(2)(e)(iii) because the records are compiled for law

enforcement purposes and, if disclosed, would disclose
confidential information relating to a criminal investigation12

d. 87(2)(e)(iv) because the records are compiled for law

enforcement purposes and, if disclosed, would reveal non-
routine criminal investigative techniques or procedures.13

116. The remaining CANVASS Complaint Follow-Up Report disclosed by

Respondents as part of the Final Determination is dated February 2, 2012 and relates to

an evidence search that had been conducted as of 9:30PM by an NYPD Captain,

numerous NYPD Sergeants, Detectives, and other officers in the backyard of the building

10
Under 87(2)(b) of the FOIL, Each agency shall, in accordance with its published rules, make
available for public inspection and copying all records, except that such agency may deny access to records
or portions thereof that: (b) if disclosed would constitute an unwarranted invasion of personal privacy
under FOIL 89(2). FOIL 89(2) provides that [a]n unwarranted invasion of personal privacy includes,
but shall not be limited to seven enumerated categories of records such as medical records and other
records containing specific types of private and/or confidential information..
11
Under FOIL 87(2)(f), an agency may deny access to records or portions thereof that:(f) if disclosed
could endanger the life or safety of any person.
12
Under FOIL 87(2)(e)(iii), an agency may deny access to records or portions thereof that:(e) are
compiled for law enforcement purposes and which, if disclosed, would: iii. identify a confidential source
or disclose confidential information relating to a criminal investigation.
13
Under FOIL 87(2)(e)(iv), an agency may deny access to records or portions thereof that:(e) are
compiled for law enforcement purposes and which, if disclosed, would: iv. reveal criminal investigative
techniques or procedures, except routine techniques and procedures.

25
in which Haste killed Mr. Graham, as well as the fire escape, roof, adjacent roofs, and

neighboring backyards that yield[ed] negative results.. (Bates No. 000035).

117. The remaining two of the three total INTERVIEW Complaint Follow-

Up Reports disclosed by Respondents as part of the Final Determination relate to NYPD

interrogations of Ms. Hartley at the 47th Precinct at 4:00PM and 7:30PM (Bates Nos.

000013-000014, 000031-000032).

118. According to the Unusual Occurrence Report disclosed by Respondents as

part of the Final Determination dated February 3, 2012 (Bates Nos. 000004-000005)

documents that, at 3:01PM, the 47th Precinct Detective Squad Detective who appears to

have been in charge of the investigation at the time summarized the investigation that had

by then been conducted as follows:

On February 2, 1012, at approximately 1501 hours, while conducting

SNEU Operations within the confines of the 47 PCT, a Police Officer
assigned to the 47 PCT SNEU Team engaged a perpetrator with deadly
physical force by means of his service weapon during the course of a
struggle to apprehend him, causing his demise.

119. Two GENERAL INVESTIGATION Complaint Follow-Up Reports

from February 3, 2012 disclosed by Respondents as part of the Final Determation

document police and prosecutors obtaining a search warrant to search the apartment

where Haste killed Mr. Graham and that they executed the search which yielded

negative results and was concluded at 3:46PM. (Bates Nos. 000036-000037).

120. The single VIDEO SURVEILLANCE COLLECTION Complaint

Follow-Up Report disclosed by Respondents as part of the Final Determation documents

that, on February 5, 2012, an NYPD detective had uploaded video surveillance from

716 East 229th Street and that he had isolated three relevant clips of video footage

[t]he first show[ing] Mr. Graham with two companions walking eastbound on 229th

26
Street, [t]he second cli shows the SNEU van travelling eastbound on E 229 Street and

[t]he third clip is the same footage that was reported by media outlets as depicting Mr.

Graham running with officers walking behind him[ h]owever review of this video has

revealed that the person running is in fact P.O. Hugh Stanton of the 47 PDU responding

to the report of shots fired. (Bates No. 000038).

121. A GENERAL INVESTIGATION Complaint Follow-Up Report dated

February 8, 2012 summarizes a location analysis report for 749 East 229th Street

through the NYPDs Real Time Crime Center chronicling 102 events from January 1,

1960 to February 2, 2012. (Bates Nos. 000041-000042).

122. A B-5 CLOSING Complaint Follow-Up dated February 9, 2012

memorializes that, at 1:00PM, the investigation was transferred to the IAB. (Bates Nos.

000039-000040).

123. A review of the numbered Complaint Report Follow-Ups shows that at

least around 18 records related to this set of documents created between February 2, 2012

and February 9, 2012 have been withheld. (Nos. 1-2, 12, 15-16, 24-25, 29, 33-34, 37, 41-

46, and 51-52).

124. Also as part of the Final Determination, Respondents disclosed what they

characterized as two (2) non-exempt Property Clerk Invoices generated following the

incident - a Property Clerk Invoice describing DECEDENTS PROPERTY - Mr.

Grahams Jewelry consisting of a watch and two earrings. (Bates Nos. 000043-000044)

and a Property Clerk Invoice describing three blood swaps collected on February 3,

2012 as DNA INVESTIGATORY evidence (Bates Nos. 000045-000046).

125. Also as part of the Final Determination, Respondents disclosed a redacted

Location Search they characterized as a list of all police-related incidents having

27
occurred at the bodega at East 228th Street and White Plains Road between March 1,

2011 and March 1, 2012. (Bates Nos. 000047-000049).

126. Also as part of the Final Determination, Respondents disclosed a redacted

IAB Call-Out Report they characterized as having been generated by Internal Affairs

documenting their initial response to, and investigation of, the scene. (Bates Nos.

000050-000054).

127. While the CANVASS Complaint Follow-Up Reports appear to have

been redacted to exclude information about locations visited, witnesses interviewed, or

the results of interviews or requests or attempts to access or view video footage, see

Bates Nos. 000003, 000007-000011, 000017-000024, 000026-000027, 000029, 000033,

and 000035, the IAB Call-Out Report documents which are themselves redacted -

appear to contain a good deal of information similar ot he information presumably

withheld from the CANVASS Complaint Follow-Up Reports, see, e.g., Bates Nos.

000050-000052.

128. Referring to the redactions in the Location Search and IAB Call-Out

Report (Bates Nos. 000047-000054), the Final Determination states they contain

redactions pursuant to POL 87(2)(b); (e)(iii); (e)(iv); and, (f) without providing

analysis or explanation.

129. Aside from producing those 54 pages of heavily-redacted records

disclosed, the Final Determination denied the Appeal in its entirety for the variety of

reasons enumerated below:

a. FOIL 87(2)(a) in that such records consist of Police Officer

personnel records and are therefore exempt from disclosure
under the provisions of Civil Rights Law Section 50-a and
because [t]he recordscontain information that is used to

28
 evaluate the performance of a police officer in connection with
his/her continued employment or promotion14

b. [T]hese personnel records including, specifically, IAB

records and the Firearms Discharge Review Board Report are
exempt from disclosure pursuant to 87(2)(g) because these
are intra-agency records which are not: (i) statistical or factual
tabulations or data; (ii) instructions to staff that affect the
public; (iii) final agency policy or determinations; or, (iv)
external audits15

c. The appeal is further denied pursuant to 87(2)(e)(i) because

most of the records sought are compiled for law enforcement
purposes and, if disclosed, would interfere with judicial
proceedings in that the Department trials for each of the
officers facing Department charges for their roles in the
incident have either not yet reached their conclusion or have
not yet even commenced. Therefore, the disclosure of most of
the information sought including civilian witness statements,
officer statements, investigative findings, recommendations
and opinions, recordings, notes, interrogations, observations,
interactions, etc. if made public, would clearly interfere with
these judicial proceedings and hamper the Department from
conducting a fair, impartial and objective trial

d. Further, the appeal is denied because a diligent search was

conducted for all records for which the above two exemptions
were not applicable and records either could not be located
based on the information provided or are exempt pursuant to
POL 87(2)(b); (e)(iii); (e)(iv) and (f).These records include
witness statements, crime scene evidence, lab reports, and non-
routine computer checks and notifications

e. Finally, POL 87(2)(a) bars from disclosure, first, the

Medical Examiners report because these records are
specifically exempted by City Charter 557(g); second, DNA
records under Executive Law 995-d; and third, records

14
FOIL 87(2)(a) provides that an agency may deny access to records or portions thereof that: (a) are
specifically exempted from disclosure by state or federal statute. Generally speaking, NY Civil Rights
Law 50-a permits the NYPD to withhold personnel records used to evaluate performance toward
continued employment or promotion as confidential.
15
FOIL 87(2)(g) provides that an agency may deny access to records or portions thereof that:(g) are
inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii.
instructions to staff that affect the public; iii. final agency policy or determinations; or iv. external audits,
including but not limited to audits performed by the comptroller and the federal government.

29
 containing criminal histories under New York Executive Law
837(8) and 9 NYCRR 6150.416
.
130. According to The New York Times17, on Friday, March 24, 2017, the

NYPD found Haste had used poor tactical judgment and recommended his dismissal

and NYPD Deputy Commissioner Rosemarie Maldonado called Hastes lawyer to so

inform him, and Haste resigned from the NYPD on Sunday, March 26, 2017 rather than

face firing on Monday.

131. On March 28, 2017, ThinkProgress published a copy of Hastes CCRB

Officer History, revealing that six CCRB reports had been levied against him between

September of 2009 and October of 2010, including numerous force-related complaints.18

132. Upon information and belief, internal disciplinary trials against Sgt.

Morris and NYPD Officer McLoughlin have not yet been scheduled.

133. Although the requirements under FOIL 89(3)(b) that agencies like the

NYPD that have reasonable means available to do so must accept and respond to FOIL

16
Under City Charter 557(g), The chief medical examiner shall keep full and complete records in such
form as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate
district attorney copies of all records relating to every death as to which there is, in the judgment of the
medical examiner in charge, any indication of criminality. Such records shall not be open to public
inspection. Under Executive Law 995-d(1), All records, findings, reports, and results of DNA testing
performed on any person shall be confidential and may not be disclosed or redisclosed without the consent
of the subject of such DNA testing. Such records, findings, reports and results shall not be released to
insurance companies, employers or potential employers, health providers, employment screening or
personnel companies, agencies, or services, private investigation services, and may not be disclosed in
response to a subpoena or other compulsory legal process or warrant, or upon request or order of any
agency, authority, division, office, corporation, partnership, or any other private or public entity or
person, except that nothing contained herein shall prohibit disclosure in response to a subpoena issued on
behalf of the subject of such DNA record or on behalf of a party in a civil proceeding where the subject of
such DNA record has put such record in issue. Executive Law 837(8) directs the New York Division of
Criminal Justice Services to [a]dopt appropriate measures to assure the security and privacy of
identification and information data. In 9 NYCRR 6150.4, DCJS has exempted numerous categories of
criminal history records from disclosure under the FOIL. See 9 NYCRR 6150.4.
17
Haag, Matthew and Southall, Ashley. (March 27, 2017). Officer Who Killed Ramarley Graham Leaves
New York Police Department. New York Times. Retrieved at
https://www.nytimes.com/2017/03/27/nyregion/ramarley-graham-nypd-richard-haste.html
18
Townes, Carimah. (March 28, 2017). EXCLUSIVE DOCUMENTS: Officer had an unusual number
of complaints before he killed Ramarley Graham. ThinkProgress. Retrieved at
https://thinkprogress.org/richard-haste-disciplinary-record-474f77eb8d19.

30
requests by email have been in place since 2006, as a matter of policy and practice, the

NYPD refuses to accept or respond to FOIL requests by email.

134. Upon information and belief, the NYPD has reasonable means available

to accept and respond to FOIL requests electronically.

135. And although under FOIL 87(5)(a), agencies are required to provide

records in an electronic medium upon request, if the agency can reasonably make or have

such a copy made, as a matter of practice, the NYPD routinely refuses to respond to

FOIL requests electronically by providing electronic versions of responsive documents.

136. The Request and Appeal seek responses by e-mail and disclosure in the

form of electronic versions of responsive records. See Request at pp. 2, 23.

137. The Request seeks the e-mail address of the Records Access Appeals

Officer. See Request at pp. 2, 23.

138. Respondents refused to respond to the e-mail Request or the Appeal by e-

mail as requested or to provide electronic records electronically as requested in this case.

139. In September of 2016, the NYPD did not accept and respond to FOIL

requests by e-mail, or publicize any e-mail address to which FOIL requests could be

submitted.

140. On September 29, 2016, Respondent NYPD received the Request by hand

as well as by e-mail directly to the NYPDs RAO.

141. In August of 2016, Respondents were sued in Keegan Stephan v. NYPD,

NY Supreme Court Index No. 101285-2016, a case pending before Hon. Manuel Mendez

in the New York State Supreme Court in New York County challenging the NYPDs

refusals to respond to e-mail requests and appeals and related policies and practices.

31
 142. During the pendency of the Stephan case, in around mid-December of

2016, Respondent NYPD changed its website to include an e-mail address to which FOIL

requests may be submitted, FOIL@NYPD.org.

143. Rather than responding to the Requeest by e-mail as requested and

required, Respondents acknowledged receipt by letter dated October 6, 2016, sent by

regular postal mail.

144. That initial acknowledgement did not include the RAAOs e-mail address

or provide any other e-mail address through which to submit an appeal.

145. Then, rather than responding by e-mail as requested and required,

Respondents sent their January 31, 2017 Denial by regular postal mail.

146. The Denial did not include the RAAOs e-mail address or provide any

other e-mail address through which to submit an appeal.

147. On March 1, 2017, Respondent NYPD received the Appeal by hand as

well as e-mail directly to FOIL@NYPD.org.

148. Rather than responding to the Appeal by e-mail as requested and required,

Respondents sent the March 16, 2017 Final Determination by regular postal mail.

149. Respondents have a practice of refusing to accept and respond to e-mail

FOIL requests and appeals by e-mail.

150. Respondents refusals to accept and respond to e-mail FOIL requests and

appeals by e-mail and by providing electronic versions of responsive documents when

requested violates Respondents clear duties to provide such responses by e-mail and in

electronic format when requested.

32
 151. In the future, Petitioners CPR and The JC intend to make other FOIL

requests and appeals by e-mail, and wishes to receive such responses by e-mail, including

e-mail responses including electronic documents.

152. Not being able to submit and receive responses to FOIL requests

electronically from the NYPD has and will continue to greatly increase the time, effort,

and expense involved for Petitioners in accessing NYPD records through the FOIL.

153. Being able to make and receive FOIL responses electronically will save

Petitioners time, money, and energy, and will ultimately increase the open, public access

to the NYPDs records that the FOIL presumptively requires.

CAUSES OF ACTION

154. The Article 78 prong of this proceeding is the proper means to review

Respondents violations of the FOIL, the FOIL Implementing Regulations, and the

Uniform FOIL Rules, as well as Petitioners requests for relief in the form of an Order

requiring Respondents to accept and respond to FOIL requests and appeals by e-mail and

to produce documents in electronic format when requested in compliance with

89(3)(b) and 87(5)(a) of the FOIL.

155. CPLR 3001 provides for the declaratory relief requested herein.

156. Petitioners had the clear right under the FOIL, the FOIL Implementing

Regulations, and the Uniform FOIL Rules to the records sought in the Request. See, e.g.,

FOIL 87(2) (Each agency shall, in accordance with its published rules, make available

for public inspection and copying all records, . . . ); FOIL 84 (Legislative

declaration19); 21 NYCRR 1401.1 (Purpose and Scope); 21 NYCRR 1401.5 (Responses

19
The Legislative declaration states:

33
to requests for records); 43 RCNY 1-01 (Scope) (including 1-01(b) (Agency

personnel shall furnish to the public the information and records required to be made

available by the [FOIL], as well as records otherwise available by law. Any conflicts

among laws governing public access to records shall be construed in favor of the widest

possible availability of public records).

157. The Request reasonably described the requested records.

158. Petitioners dispute that Respondents timely commenced or conducted

diligent searches for records responsive to the Request.

159. Respondents have not produced the records sought in the Request and

have failed to justify their failures and refusals to do so.

160. Respondents failed in their obligations under the FOIL, the FOIL

Implementing Regulations, and the Uniform FOIL Rules to respond timely or adequately

to the Request.

161. Respondents failed in their obligations under the FOIL, the FOIL

Implementing Regulations, and the Uniform FOIL Rules to conduct timely or adequate

searches for the requested records.

The legislature hereby finds that a free society is maintained when government is
responsive and responsible to the public, and when the public is aware of governmental
actions. The more open a government is with its citizenry, the greater the understanding
and participation of the public in government.
As state and local government services increase and public problems become more
sophisticated and complex and therefore harder to solve, and with the resultant increase
in revenues and expenditures, it is incumbent upon the state and its localities to extend
public accountability wherever and whenever feasible.
The people's right to know the process of governmental decision-making and to review
the documents and statistics leading to determinations is basic to our society. Access to
such information should not be thwarted by shrouding it with the cloak of secrecy or
confidentiality.
The legislature therefore declares that government is the public's business and that the
public, individually and collectively and represented by a free press, should have access
to the records of government in accordance with the provisions of this article.

34
 162. Respondents failed and continue to fail in their obligations under the FOIL

to provide e-mail responses to FOIL requests and appeals and to provide electronic

versions of responsive documents when requested.

163. Those failures, and Respondents ultimate refusals to disclose the records

sought, were unreasonable, arbitrary, capricious, contrary to law, and constituted abuses

of discretion under the FOIL Implementing Regulations and the Uniform FOIL Rules.

164. This action is timely commenced within the applicable statute(s) of

limitations.

165. No prior application has been made for the relief requested herein.

166. Beyond that, Petitioners respectfully refer to the Exhibits hereto as well as

to Petitioners April 12, 2017 Memorandum of Law in Support of the Verified Petition,

the arguments contained in which Petitioners incorporate by reference herein.

CONCLUSION

WHEREFORE, Petitioners respectfully request that this Court grant a final

judgment and order pursuant to CPLR Article 78 and CPLR 3001 containing the

following relief:

(a) Pursuant to CPLR 7806, annulling Respondents Final

Determination and ordering Respondents to comply with their
duties under the FOIL, the FOIL Implementing Regulations, and
Uniform FOIL Rules, by conducting a meaningful search for the
records sought in the Request and granting Petitioner access to
non-exempt responsive documents, or appropriate certifications as
to the disposition of the requested records or Respondents
inability to locate them, along with the required appropriately
particularized written explanations justifying any documents or
information redacted or withheld, within a prompt date certain;

(b) Pursuant to CPLR 7803(1), issuing an Order in the nature of

mandamus requiring Respondents to accept and respond to FOIL
requests and appeals by e-mail and to produce documents in

35
 electronic format when requested in compliance with 89(3)(b)
and 87(5)(a) of the FOIL;

(c) Pursuant to CPLR 3001, issuing a declaratory judgment that

Respondents refusals to accept and respond to FOIL requests and
appeals by e-mail and by producing documents in electronic
format where available violated and violate those provisions of the
FOIL;

(d) Pursuant to FOIL 89(4)(c), ordering the Respondents to pay the

reasonable litigation costs and attorneys fees; and

(e) Such other and further relief as to the Court may seem just and
proper.

Dated: April 12, 2017

New York, New York

_______________________
GIDEON ORION OLIVER
Counsel for Petitioners20
277 Broadway, Suite 1501
New York, New York 10007
(646) 263-3495

20
Counsel gratefully acknowledges that these papers were prepared with assistance from Michael J.
Decker, Esq., and Elena L. Cohen, Esq., Of Counsel.

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 ATTORNEY VERIFICATION

STATE OF NEW YORK )

) ss.:
COUNTY OF NEW YORK )

GIDEON ORION OLIVER, an attorney admitted to practice in the courts of New

York State, under penalty of perjury, affirms:

I have read the foregoing Verified Petition and Complaint and know the contents
thereof, and the same is true to my own knowledge, except as to matters therein state to
be alleged on information and belief, and that as to those matters I believe them to be
true. Where based upon information and belief, the source of the information is apparent
from the context or set forth parenthetically.

This Verification is made by me and not Petitioner on the basis of CPLR

3020(d)(3). Petitioner is not within the county where I have my office.

PART 130 CERTIFICATION

To the best of my knowledge, information and belief, formed after an inquiry

reasonable under the circumstances, the presentation of these papers or the contentions
therein are not frivolous as defined in subsection (c) of section 130-1.1 of the Rules of the
Chief Administrator (22 NYCRR).

Dated: New York, New York

April 12, 2017

__________
GIDEON ORION OLIVER

37